Juliana v. United States: The Evolving Doctrine of Standing

Background:

The Juliana v. United States case was brought by 21 children against the United States government over the failures of the United States in adequately addressing climate change. The lawsuit alleges that the United States, in allowing the production of fossil fuels to continue, violates the life, liberty, and property interests of the children. The plaintiffs are seeking a concrete plan by the United States government in halting and reversing the effects of climate change. So far, the Ninth Circuit Court of Appeals has denied the Trump administration’s writ of mandamus and allowed the case to go to trial. Trial is set for October 29, 2018 in Oregon. [Thomson, Amy. “These Teens Just Won a Victory Over the Trump Administration in Court.” Mother Jones, 13 Apr. 2018, http://www.motherjones.com/environment/2018/04/these-teens-just-won-a-victory-over-the-trump-administration-in-court/.%5D

Controversy:

Climate change is a pressing controversy with real consequences. As resources continue to dwindle, and coastlines continue to be inundated, people will see their qualities of life decrease. This was the case with the 21 plaintiffs, who witnessed the effects of climate change first-hand.

Analysis/Evaluation:

The case was filed in the last few days of the Obama administration, and the Obama administration admitted several of the allegations set forth in the pleadings. This seems to be an effective strategy in locking in the subsequent administration into the case.

Although there is a trial date set, the plaintiffs may run into more issues in the case. Plaintiffs must have legal standing to bring suit. Standing requires injury in fact, causation, and redressability by the courts. The injury-in-fact must be actual and imminent, and not a generalized grievance. The injury-in-fact must also be particularized. In the recent past, the Supreme Court has allowed states to bring suit against the Environmental Protection Agency (EPA) for potential climate change harms. In Massachusetts v. EPA, injury in fact was found when sea-level rise threatened to inundate the coastline of Massachusetts. A causal link to EPA action was found based on EPA’s refusal to regulate vehicle carbon emissions, and the court found that any decrease to emission will result in the decrease to the effects of climate change.

With the continuous evolution of the doctrine of standing,  however, it is unclear how the Juliana case will come out. While injury-in-fact imposes several requirements, there is no need for an actual legal claim (in cases such as Sierra Club v. Morton, the potential effect on one’s right to enjoy aesthetics was enough.) Here, the children, in having their homes flooded, will likely satisfy the injury-in-fact requirement.

However, the children’s injuries may not be particularized since everyone on earth is facing the same effects of climate change. This is a global problem since many people will be affected. Further, a causal connection is also hard to show: The United States is not the only country in the world that allows fossil fuel usage. To argue that the United States government brought on the plaintiff’s injuries may be a stretch considering other countries’ carbon emissions. However, this was allowed in Massachusetts v. EPA when the Supreme Court determined that there was a connection between United States carbon dioxide emissions and the likely inundation of state lands. It is important to note that in the case, Massachusetts was a quasi-sovereign. Therefore, the Court may have viewed the situation differently than in this case in which the plaintiffs are children and not a quasi-sovereign.

Finally, the issue of redressability will be difficult for the plaintiff to overcome.  There is debate over whether climate change is reversible once atmospheric carbon dioxide exceeds 400ppm. Seeing as that level has been exceeded, it is uncertain whether courts can rectify the situation. Further, this looks like a global problem as well as a political issue. Courts have been reluctant in finding redressability when the problems are either global, such that everyone will be affected, or when the problem is of a political controversy. With the current split between the political parties, climate change may look like a political problem. If the plaintiffs were suing for damages, this would be simpler. However, even if the court compels the government to act, it is unlikely that climate change could be reversed in these children’s lifetimes. On the other hand, it is unclear whether the Court will choose to avoid finding redressability. The district court judge has been favorably inclined and may make a finding for standing based on the importance of the case.

Conclusion:

Although the plaintiffs may have won themselves a trial date, it is still an uphill battle from here. It is unclear whether the plaintiffs will achieve the requisite standing necessary to bring suit, given past rulings. However, if the issue of standing is appealed to the Supreme Court and if the Supreme Court decides to distinguish this case from Massachusetts v. EPA, it may be that any finding of standing at the lower courts will be overturned.

Cynthia Yuan

Renewable Energy: The Course to a Carbon-Free Campus

Renewable Energy: The Course to a Carbon-Free Campus

In 2017, the Environment California Research and Policy Center along with Frontier Group published the report, Renewable Energy 100 – The Course to a Carbon-Free Campus. The Report emphasizes the need for college campuses to be leaders in combatting the impact of global climate change. Colleges across the country are setting goals to become 100% reliant on clean, renewable sources. According to the U.S. Department of Energy’s National Renewable Energy Laboratory, the United States could use solar and wind power to produce 100 times more electricity than the United States consumes in a year. Colleges are also opportunities for reducing carbon emissions since higher education serves six percent of the United States. Further, college campuses have good locations to implement clean energy such as parking lots, rooftops and land for wind turbines.

College Campuses Are Ideal Places for 100 Percent Renewable Energy

According to the American Council for Energy-Efficient Economy, the U.S. could reduce its energy use by 40 to 60 percent below current levels, since the U.S. wastes up to 60 percent of the energy it consumes. College campuses are ideal for renewable energy because they are major energy users, spending $14 billion on energy each year. The self-contained nature of campuses makes it possible to implement microgrids, self-contained electric grids that can function independently of the central power grid. Microgrids allow campuses to function even when there are central grid outages. Our own institution, Santa Clara University, has been building a microgrid system that uses weather reports to maximize renewable energy and sensors in buildings to monitor energy use.

Moreover, colleges are in a position to promote and train students to be more mindful of energy saving solutions. College campuses can save money by switching to renewable energy which is another added bonus. Additionally, campuses tend to have more resources to be able to implement long term savings. Students can play a vital role in helping with renewable energy innovation, and their training will be needed to move our society to renewable energies.

College Campuses Are Leading the Transition to Renewable Energy

Butte community college became the first college in the nation to become “grid positive.” Butte built solar panels on rooftops, in open fields, and on parking lot canopies and shade structure. Butte’s green power eliminates 1000 passenger vehicles worth of carbon dioxide and will save the school $100 million over the next 30 years. Furthermore, the school offers classes that train students to work with solar panels.

The University of Delaware has a wind turbine that is 256 feet tall with 144 foot long blades. Not only does the wind turbine offer energy but it also offers students the opportunity to study the impacts of wind turbines on birds and bats and the corrosive impact of salty coastal air on the turbines.

Ball State in Indiana has one of the nation’s largest geothermal energy systems. The system runs water through pipes underground in order to heat and cool 5 million square feet in 47 buildings. The project saves about $2 million in operating costs per year and has created 2,300 jobs in the community.

Takeaway

Because of their size, resources, and unique structure, colleges have a unique opportunity to support the development of renewable energy.  With college campuses driving innovation throughout the nation, these small communities will be vital in pushing the nation forward on the environmental front. More campuses should start implementing and training students in renewable energies.

My personal interest in renewable energy began when I enrolled in a Bio Resource Agriculture Engineering course in renewable energy at Cal Poly, San Luis Obispo. I found the technology to create such complex system fascinating. And while I had heard previously that Santa Clara University has been taking steps to become carbon neutral, I was pleasantly surprised to learn about Santa Clara University’s leadership in this report. And to hear that Butte community college was the first college to become “grid positive” was particularly surprising.  As a Santa Clara University student, I am proud that my institution, and institutions like it, are proactively taking steps to reduce their carbon footprint.

Haley Costamagna

California Agricultural Vision: Progress Report

California Agricultural Vision: Progress Report

As a follow-up to the 2010 report California Agriculture Vision: Strategies for Sustainability, American Farmland Trust published a 2012 progress report, California Agriculture Vision: Progress Report. The original Report had articulated twelve strategies for improving sustainability. In this blog post, I will reflect on the three strategies previously touched on in my first blog post: Expand Environmental Stewardship on Farms and Ranches, Promote Renewable Energy & Substitutes for Fossil-Based Inputs, and Assure Agricultural Adaptation to Climate Change.

Expand Environmental Stewardship on Farms and Ranches

The Progress Report identified a number of model efforts where farms have been implementing environmental strategies to expand environmental stewardship. For example, a number of institutions, including producers, buyers, and public interest groups developed the Stewardship Index for Specialty Crops (SISC), a measure of sustainable performance throughout the supply chain of specialty crops (fruits, vegetables and nuts). The purpose of the index is to allow farmers to optimize production with strong environmental protections by offering indicators of farm practices related to use of water, nitrogen and other inputs and outputs.  The California Roundtable on Ag and the Environment (CRAE) initiative is another place where progress is evident. CRAE connects agriculture and environmental leaders so that they can touch base and work together on issues.  One issue that CRAE has focused on is how to increase water availability throughout the state, especially by enhancing the management of the Sierra headwaters.  These farming leaders will help provide other farmers and ranchers with models for how to become more sustainable.

Promote Renewable Energy & Substitutes for Fossil-Based Inputs

In order to decrease the use of fossil fuels, the California Department of Food and Agriculture (CDFA), EPA, and USDA have sought to consolidate permitting requirements for methane digesters on dairy farms. (Methane digesters convert livestock manure into renewable energy to power farms and export to the electric grid.) Furthermore, CDFA and the California Energy Commission have been engaged in identifying the challenges and potential opportunities of biofuels in California, including the possibility of commercializing biofuels and biofuel feedstocks.  Another step taken by the State to support renewable energy was SB 618, which will boost solar photovoltaic energy facilities on farmland.

Assure Agricultural Adaptation to Climate Change

A variety of organizations have engaged in discussions and conferences to implement plans to combat climate change. In 2011, CDFA and the State Board on Food and Agriculture sponsored expert discussions about the extreme climate risks and California’s future agriculture and food systems. The meeting allowed the public to listen to climate change experts and speak to the Board about their concerns. Additionally, Governor Brown held a conference on extreme climate risks and California’s future including agriculture. The conference focused on the best ways to protect the state and adapt to extreme weather events. Even Bank of America, in collaboration with UC Berkeley and UCLA, had many meetings and even prepared their own report outlining the impacts climate change has on California’s agriculture industry. Farmers and ranchers face many obstacles due to climate change, but farmers can control their contribution to greenhouse gases. Further, they address issues with reducing agricultural greenhouse gas emissions, such as lack of research, insufficient financing, regulatory conflicts, and lack of awareness. Consequently, all of these discussions help promote research and awareness which encourages more sustainable practices.

Key Takeaway

Personally, before reading these reports I was not aware of some of the programs in place to promote the environment within the agriculture industry, such as CRAE and the Stewardship Index for specialty crops. I think programs that make it easier for farmers and ranchers to implement environment practices will be the most beneficial such as the Stewardship Index. Moreover, I believe consumers can play a huge role in holding the industry accountable and buying from farmers that use environmentally friendly practices. Further, I believe in Ag Vision’s goal to make sure these programs stay volunteer measures. Most farmers and ranchers want to protect the environment since they rely heavily on it. Also, in my experience most are open to implementing environmental practices that they believe really help the environment. Having the research and information to back up certain environmental practices will be crucial to getting more in the industry to implement these practices.

Haley Costamagna

California Agricultural Vision: Strategies for Sustainability

Strategies For Sustainability 

In 2017, American Farmland Trust published the report, California Agriculture Vision: Strategies for Sustainability, a report making recommendations regarding the strategies the California Department of Food and Agriculture (CDFA) and the State Board of Food and Agriculture should implement in order to address challenges and assure the sustainability of California agriculture. In response, both state agencies developed the “California Agricultural Vision,” Twelve strategies designed to enhance sustainability. The American Farmland Trust, a nonprofit conservation organization, was given the responsibility of managing the Ag Vision process. Three of those strategies – Expand Environmental Stewardship on Farms and Ranches, Promote Renewable Energy & Substitutes for Fossil-Based Inputs, and Assure Agricultural Adaptation to Climate Change — are worth a more careful examination here.

Expand Environmental Stewardship on Farms and Ranches

Farmers and Ranchers have been working to enhance environmental quality and to reduce their impact on air, water, and living systems. Becoming more environmentally friendly seems to be a double edged sword, however. On one hand, environmental stewardship is likely to produce economic benefits through reduced costs for inputs such as energy, water, and agrichemicals. On the other hand, there are financial and time costs associated with complying with environmental laws and regulations. As a long term strategy of turning this tension into an opportunity for California agriculture, the Trust recommended that CDFA and the Ag industry turn the state’s sustainability objective and environmental standards into a California “brand.” To achieve this goal, the Trust suggested that the CDFA work with private agricultural institutions and nonprofit organizations on documenting their efforts to improve environmental quality, thus enhancing the visibility of success stories and the value of the brand.  Moreover, the Trust also suggested voluntary assessment and seeking federal funding for promoting environmental performance.

Promote Renewable Energy & Substitutes for Fossil-Based Inputs

Agriculture is heavily reliant on fossil-derived inputs and has a significant economic stake in using renewable sources of energy. The Trust recommended that the State Board take immediate action by appointing a task force to investigate how the agriculture industry could reduce fossil fuel-derived inputs. The Trust suggested a “win-win” outcome if renewable sources of energy could be created from processes that occur naturally on farms and ranches such as biomass, a euphemism for animal manure and waste, and the methane that is created. Utilizing methane from manure instead of traditional fossil fuel inputs, such as natural gas or oil, could not only save farmers money but also lower greenhouse gas emissions and reduce the significant contribution of methane to climate change.

Assure Agricultural Adaptation to Climate Change

Established science is predicting that the long-term effects of climate change will result in the reduction of water supplies, increase plant heat stress, decrease nighttime cooling, and shift pollinator life cycles. Since California agriculture accounts for about six percent of the state’s total greenhouse gas emissions, in the form of carbon dioxide, methane, and nitrous oxide, the industry is both a contributor and a victim of climate change. The Trust recommended that the state board survey existing studies, on-going research, and projects and take other practical steps to assess the potential impact of climate change on California agriculture. After all, understanding the contribution and effects of climate change on California agriculture is a key step in formulating appropriate responses.

Key Takeaway

Just like other industries, agriculture is trying to develop and promote ways to reduce its impact on the environment. Most farmers and ranchers do not want more regulations that add paperwork on top of their day-to-day work. However, most farmers are interested in making a positive impact on the environment and are always looking for ways to be more efficient. Developing plans and options reducing the need for regulation while encouraging sound environmental stewardship of the environment will ultimately serve everybody’s interests.

Haley Costamagna

Congratulations to Santa Clara Law Environmental Negotiation Team!

Santa Clara Law’s Student Negotiation Team took first place in the 9th Annual California Lawyer’s Association Environmental Law Negotiations Competition.   Yay! The team consisted of 2L Mikaela Burkhardt and 3L Yemi Akilo, with  HMCE Student Coach, Charles Huh 3L and Attorney Coach Jamie Ormond JD ’12 providing important support.

From left: Charles Huh 3L, Mikaela Burkhardt 2L, Yemi Akilo 3L, and Jamie Ormond JD '12

Silicon Valley’s Status Symbol

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Buffy, Grape, and Opera

Here is a picture of my new Silicon Valley status symbols. (“New” only because I didn’t know previously that they were status symbols!)  Now, I will no longer need to get a Tesla.  [See this story for context:  https://www.sfgate.com/business/article/The-Silicon-Valley-elite-s-latest-status-symbol-12723431.php.

Earthjustice President Search

Earthjustice’s President Trip van Noppen announced last November that he will be stepping down after a very successful 10 years at the helm.

There is now an ongoing search for a new President.  The position description is here:  https://earthjustice.org/about/jobs/36490/president